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Saturday, November 28, 2015
- By striking down a law that makes the death penalty mandatory for drug-related offences, the Bombay High Court has raised hopes among rights activists that other countries in the region will follow suit.
“While we believe the death penalty for drugs – as a mandatory or discretionary sanction – has no place in any country’s legal system, we believe this is a major step in the right direction,” said Patrick Gallahue, analyst with the London-based Harm Reduction International (HRI).
Gallahue told IPS, in an e-mail discussion, that some of India’s neighbours prescribe a mandatory sentence of death for certain types of drug offences and they argue that it is normal for the region.
“The removal of the death penalty as a mandatory punishment for drug-related crimes by India means that there is less cover for other countries in the region to defend national policies that go against international law,” Gallahue said.
The Jun. 16 ruling of the court declared relevant sections of the Narcotic Drugs and Psychotropic Substances Act, (NDPSA), that imposes a mandatory death sentence for a subsequent conviction for drug trafficking, “unconstitutional”.
The Court however, refrained from striking down the law, preferring to read it down instead. Consequently, the sentencing court will have the option and not obligation, to impose capital punishment on a person convicted a second time for possessing drugs in large quantities.
Malik was sentenced to death with no consideration given to mitigating factors because of the mandatory nature of the punishment provided under the NDPSA.
In general, Indian courts stick by the principle that the death penalty should awarded only in the “rarest of rare” case. Hangings, the sole approved mode of execution in India, are rarely carried out.
The court verdict toning down the NDPSA came in response to a petition filed by the Indian Harm Reduction Network (IHRN), a consortium of non-government organisations (NGOs) working for humane drug policies.
IHRN assailed the law as “arbitrary, excessive and disproportionate” to the crime of dealing in drugs.
Tripti Tandon, who heads advocacy at the Lawyers’ Collective, a part of the network, told IPS that the death penalty is reserved for “very serious offences that involve the taking of life and this did not apply to possessing or dealing in drugs.”
Tandon said she was aware of widespread concern that India is considered a major transit point for drugs from the “Golden Crescent” to its northwest and from the “Golden Triangle” to its northeast. “But the fact is trafficking in this country rarely involves violent crime,” she said.
“Officially, India sees drug trafficking as an economic offence that is dealt with by the department of revenue.” Tandon also pointed out that Indian society has traditionally been tolerant of a certain level of the use of such substances as cannabis and opium, which, in their unrefined state, are not as harmful or addictive as refined derivatives such as heroin.
“The Bombay High Court ruling is a recognition of the principles of harm reduction and human rights in relation to drugs,” Tandon said. “Laws that take away judicial discretion where the capital punishment is involved are unacceptable, because there may be mitigating circumstances and individual situations.”
Tandon said she hoped that the Indian ruling will set a positive precedent in a region notorious for its draconian drug laws.
Some 32 countries currently impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 12 continue to prescribe mandatory death sentences for drug crimes.
In Iran and China drug offenders constitute the vast majority of those executed. In May last year, the Court of Appeal in Singapore upheld the mandatory death sentence imposed upon a young Malaysian for possession of heroin.
According to Gallahue less than five percent of the world’s countries impose and carry out the death penalty for drug-related offences. “That is a very small minority of states and those that still impose a mandatory death sentence for drugs are an extreme fringe for both capital punishment and drug policies.
“Finally, there is not – nor has there ever been – any credible evidence that the death penalty for drugs serves as a deterrent,” said Gallahue. “Capital punishment is a wildly inappropriate response to drugs.”